It only took me a few weeks in my first role as in-house litigation counsel to learn the following: certain things that outside counsel did (with surprising regularity!) would bother me to no end. The experience left me wondering how I might have been guilty of letting down inside counsel before I joined their ranks. And it left me determined not to commit the same kinds of mistakes I saw now that I am back to serving as outside counsel.

Budget surprises

For better or worse, litigation departments are often viewed as cost centers. And to operate a cost center effectively, the legal department needs to have predictability about budget. That means when outside counsel proposes a budget, they should treat that proposal as a kind of promise. Things happen, to be sure. But if you’re experienced enough to land the job, you should be experienced enough to provide an accurate budget. Very little will upset in-house counsel more than a bill that deviates wildly from a proposal. If you’re going to go over, let folks know by how much and why ASAP.

Failure to communicate

Once, I got an email from outside counsel about two weeks after a hearing letting me know that at that hearing they negotiated an agreement to withdraw a motion and proceed with the case differently than how we had agreed upon. Why am I hearing that two weeks afterward? And more importantly, why was I not consulted before that agreement was reached? These are the types of questions in-house counsel do not want to ask.

Vague billing entries

“Attention to Matter X.” Glad to hear you’re paying “attention” to your cases! But this is the type of entry that will make it difficult for in-house counsel to assess how their company’s money is being spent and whether outside counsel is operating efficiently.  Make your entries more specific (without putting in the type of privileged information that you might have to redact later) and you’ll make your inside counsel colleagues happy.

Briefing with flowery language

Just the facts (and the law). That’s really all a good brief needs. Yet, I reviewed briefing with a shocking amount of flowery language: superfluous adjectives and adverbs that only make arguments look weaker, and sometimes I even saw ad hominem attacks. My ninth-grade English teacher, may his memory be a blessing, was the first teacher to teach me, “Show, don’t tell.” Take out the language that does the telling not the showing, and your briefs will come back from inside counsel with a lot less red.

Being a jerk to opposing counsel

When representing a company, anything you say or do can be attributed to the company itself. And yet . . . If inside counsel could see some of you in meet-and-confers or even in court: being condescending, histrionic, discourteous, and worse! They would be appalled that you were doing all that in the name of their company. I will tell you this: I always hired counsel that I could trust one hundred percent would behave professionally and responsibly when acting in the name of my company. Word gets around too; it’s a very small world. Conduct yourself accordingly.

Lack of team diversity

It’s 2024, everyone. When you put together a pitch packet with no diversity, it’s not about “merit.” It’s laziness. We all know it’s easier to work on a team where you just “get” one another. But when “getting” someone means you share an interest in golfing, sailing, and ski vacations, then that’s going to limit your team selection. And that is not about merit. Building teams that reflect a wider set of backgrounds isn’t just fairer, it makes teams stronger. You’re a litigator. A jury lies at the end of the tunnel. Don’t you want a team that reflects the world we live in? Your in-house counsel likely does.

Failure to consider counterpunches

When someone sues a client, one of my first thoughts is how do we hit them back. A counter claim, a request for sanctions, a demand letter for unpaid bills . . . there are often options to turn the heat up on a plaintiff. That immediately changes the dynamic of a case, and can even turn a potential loss into a win. Inside counsel will love to see you considering these options, and they’ll likewise be a bit disappointed when you fail to do the same. There may be reasons not to go that route, but at least show your inside counsel that you’re thinking aggressively, and you’ll be rewarded with more business. Do the opposite, and they might begin to think of you as a pushover.

Lack of critical thinking

Always remember you represent a business. Submitting a budget of $100,000 on a case where the business might lose, at worst, $50,000, is the kind of thing that should give you pause. All litigators want to win, but winning can mean losing when the costs become excessive. There’s also reputational harm to consider. Maybe you have a winnable case, but on the other side of the “v” is a very sympathetic plaintiff. Let your inside counsel know that you’re thinking about both the financial and reputational repercussions of your proposed strategy, and they’ll appreciate you all the more. “Win at all costs” litigators who struggle to do the same, may likewise struggle to get repeat business.

Scaring the company’s non-lawyers

As in-house counsel, few situations were more fraught than communicating with the non-lawyers at the company. At tech companies, that was especially true of the engineers; they are the lifeblood of any tech concern. So when I communicated with them, I did so with great care: speaking without legal jargon, trying not to raise alarm, and providing clear directives when tasking non-employers with any follow-up.  Sometimes, for example, in a depo prep, outside counsel come to face non-lawyers at the company.  Nothing will make it easier for inside counsel to move on from you than to make the non-lawyer uncomfortable, no matter where they rank in the company’s hierarchy.

Lack of accountability

Your client, your mistake. Not the associate’s, the paralegal’s, or the assistant’s. Yours. Unfortunately, some counsel take an approach that suggests that the “buck” stops with their colleagues, and not with them. That is not right. Take ownership of the team’s mistakes.

And please don’t try to conceal or downplay a mistake. Once, I had to find out long after the fact that we missed a filing deadline for a certain procedural option. And I only found out because it was buried in a long email. Don’t delay coming clean, and don’t bury a mistake. That will only compound the issue. Be up front, and let inside counsel strategize with you on how to mitigate any fallout from the mishap.

All told, much of this should be common sense. But my experience tells me that it’s not second nature to many, if not most, lawyers. That’s too bad, especially with respect to the issues above that signal a lack of respect for others and for the practice of law. Certainly, it makes good business sense not to let your client down. But eliminating many of the problems listed above won’t just make you a better lawyer, they might even make you a better person. That’s reason enough to try.